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Labor Relations Update

DC Circuit: NLRB Acting General Counsel Solomon’s Tenure Violated Vacancy Statute, Unfair Labor Practice Complaint Unauthorized

Posted in NLRA, NLRB, Recess appointments, Uncategorized

The political gridlock in Washington DC caused several years of tumult at the NLRB, spawning two Supreme Court decisions (Noel Canning and New Process Steel) and several courts of appeals decisions regarding the Board’s ability to act without regular appointments, and resulted in scores of decisions having to be reconsidered by a newly constituted Board.  Most of the litigation during the last few years involved whether the Board had the requisite quorum it needed to act.  While the Board quorum received most of the attention, there also exists an entire line of arguments attacking the authority of perpetual Acting General Counsel Lafe Solomon to act during his brief tenure.  Of course, regardless of the type of claim, the business of the NLRB ground on despite these substantial issues being raised with little thought to the consequences.

In Southwest Ambulance v. NLRB, Case No. 14-1107 (DC Cir. August 7, 2015), the DC Circuit Court of Appeals held that the Acting General Counsel’s appointment violated the Federal Vacancies Reform Act (“FVRA”), which meant that during the period of violation the NLRB (as in all Regions) was without authority to issue a complaint for a 23 month period.  In Southwest Ambulance, the Court was presented with an allegation that the employer made a unilateral change to a term or condition of employment upon expiration of a collective bargaining agreement in violation of the NLRA.  After a hearing, the Administrative Law Judge concluded a violation occurred.  In its exceptions, the employer challenged the complaint on the grounds that Solomon did not have authority to issue a complaint because his appointment was in violation of the FVRA.  This argument was rejected by the NLRB, which upheld the unfair labor practice on appeal.  The employer appealed to the DC Circuit and the appeals court refused to enforce the NLRB’s order finding the complaint was issued without proper authority.

In addressing whether the FVRA was properly followed, the Court noted that the FVRA sets limits on who can serve pursuant to the statute:   “a person may not serve as an acting officer for an office under this section if, (a) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person (i) did not serve in the position of first assistant to the office of such officer; or (ii) served in the position to the office of such officer for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office.”

The Court reviewed the timeline of events.  In June 2010, Ronald Meisburg resigned as NLRB General Counsel.  The President, citing the FVRA, directed Soloman who was then the Director of the NLRB’s Office of Representation Appeals, to serve as Acting General Counsel.  On January 5, 2011, the President submitted Solomon’s nomination to the Senate.  Ultimately, Solomon was re-nominated and that nomination was withdrawn in 2013.  Current General Counsel Richard Griffin’s nomination was submitted instead.

The Court held that Solomon’s appointment under the FVRA was in violation as of January 2011 when the President submitted his nomination to the Senate.  As a consequence, the Court held that under Section 3348(e)(1) of the FVRA, any action taken in violation of the statute was void.  Specifically, that provision reads in part:  “[a]n action taken by any person who is not acting [in compliance with the FVRA] shall have no force or effect” and “may not be subsequently ratified.”

The Court ruled that since the complaint issued against the employer was void and not subject to ratification, the NLRB’s consideration of the case on appeal (by a properly constituted Board) did not save the case.  The court stressed the narrow nature of its ruling:

[W]e emphasize the narrowness of our decision.  We hold that former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013.  But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions.  We address the FVRA objection in this case because petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding.  We doubt that an employer that failed to timely raise an FVRA objection–regardless of whether proceedings are ongoing or concluded–will enjoy the same success.

Thus, while there are many cases in the NLRB process challenging Solomon’s ability to act during his tenure, there likely are only a few that raised this specific attack in a timely fashion:  that Solomon’s actions were in violation of the FVRA.  Still, it is hard to imagine how, if the FVRA explicitly states that all actions taken in violation of the statute are void and not subject to ratification, this argument could not be raised at any time.  Solomon took many actions during the 23 month period at issue, including appointing Regional Directors, issuing complaints, seeking injunctive relief, all of which could be considered void and not subject to ratification.

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

Posted in Arbitration, Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized

We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions.  See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an unlawful arbitration agreement can result in attorneys fees paid to the charging party for monies spent defending a motion to compel arbitration.  The NLRB recently handed down a case that demonstrates yet another pitfall of not having all policies vetted for legality.

In Flyte Tyme Worldwide, 362 NLRB No. 46 (March 30, 2015) the Board, on public policy grounds, refused to approve the withdrawal of charges concerning an alleged unlawful mandatory arbitration provision, even though the parties reached a substantial private settlement.  In the case, employees filed a class action wage and hour lawsuit and the employer sought to compel individual arbitration pursuant to a mandatory arbitration agreement.  The employees’ attorney, faced with the prospect of litigating the claims on an individual basis, filed charges with the NLRB challenging the lawfulness of the arbitration policy.  The NLRB issued complaint and an Administrative Law Judge, relying on D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013) found the policy violated Section 8(a)(1) of the Act.  The Judge ordered revision of the policy, notice to employees, file a motion in court to withdraw the motion to compel, and to reimburse the class representatives for any “legal or other expenses related to their opposing the [employer’s] motion to dismiss and compel individual arbitration…”

While the case was on appeal to the NLRB, the employer and employees reached a settlement of the wage and hour litigation, providing for a payment of $900,000.  The payment represented settlement to the employees and “attorneys’ fees, and litigation expenses, taxes, and interest.”  In light of the settlement, the Charging Party’s attorney sought withdrawal of the charge.   The Region did not oppose the motion to withdraw the charges.  The NLRB, however, refused to approve withdrawal of the charges.  In rejecting the motion to withdraw the charge, the NLRB noted while it

is firmly committed to promoting the public interest in encouraging mutually agreeable settlements without litigation, ‘[i]t is well established that the Board’s power to prevent unfair labor practices is exclusive, and that its function is to be performed in the public interest and not in vindication of private rights.  Thus, the Board alone is vested with lawful discretion to determine whether a proceeding, when once instituted, may be abandoned.’

The Board concluded the settlement did not effectuate the policies of the Act because “it did not address, much less provide any remedy for, the violations alleged in the charge.”  In this regard, the fact the settlement did not require the employer to modify or rescind its arbitration policy was reason not to let go of the charges.  The Board also noted that the settlement was not contingent on the Board’s approval of the withdrawal.  The Board was indicating that the subject of the charges, — the arbitration policy, — a policy which presumably applied to other employees was simply not addressed leaving things as they existed prior to the charges (and the wage and hour lawsuit) the same.

This case illustrates the need to understand the landscape and account for government oversight when working out settlements with private parties where NLRB charges have been filed.  Parties often believe they can just settle and that the government will go along with any settlement as long as the private parties are happy.  Not so.  The government will scrutinize private settlements, even those involving discharges as well as policy violations, to make sure that any settlement addresses the public policy concerns.

Union Represented Employee Not Entitled To Co-Worker Witness During Investigatory Interview, NLRB Rules

Posted in General Counsel, Investigations, Mandatory submissions, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed.  Many of the recent Board cases involve correcting decisions that were  invalidated by the Supreme Court in its Noel Canning recess appointment decision.

We recently reported that the NLRB Division of Advice had determined that an employer’s search of a company car during an investigation into employee misconduct did not trigger Weingarten rights. Cases involving Weingarten rights, the right of a union represented employee to seek representation in an investigatory interview, are interesting because the potential scenarios are limitless.  The Board recently addressed a fairly unique situation in Asset Protection & Security Services, L.P., 362 NLRB No. 72 (April 22, 2015), a case where it dismissed a complaint even though an employer denied a union represented employee’s request to have a co-worker witness, as opposed to a representative, in an investigatory interview.

The employer in Asset Protection & Security Services contracted with the federal government to supply armed and unarmed transportation and detention guards to a federal immigration facility.  The employee guards in question were represented by a union.  The parties’ collective bargaining agreement enshrined Weingarten rights, including a requirement that the employer release the union representative from work and to pay that person for time spent undertaking such duties.  Charging Party was a guard who had served as an elected union representative at various times but did not hold such a position during the time of the events of the case.

During a morning “muster” of guards, the Charging Party had an encounter with a supervisor which was considered confrontational and insubordinate by the employer.  The employer initiated an investigation and placed the Charging Party on leave pending completion of the inquiry.  The employer informed the Charging Party that he would need to come in for an interview about the incident, clearly the very type of interview governed by Weingarten because discipline or discharge was a possible outcome.

The Charging Party guard requested a union representative and asked that an international union representative represent him.  For reasons which are not set forth in the decision, the international representative did not wish to enter the facility and so the Charging Party selected a different representative from the local union, the individual who was the point of contact for disciplinary interviews.  Ultimately, the Charging Party changed his mind and in an e-mail exchange told the employer that he would represent himself in the interview.  An interview was then scheduled.

On the date and time of the interview, the Charging Party appeared at the interview along with a fellow guard who was supposed to be working.  The Charging Party asserted his co-worker would act as his witness.  The employer denied the request noting that the witness was not a union representative, was supposed to be working and was in fact on the clock.  The employer directed the co-worker to return to his duties, leaving only the Charging Party and employer representative.  During the interview the employer asked the employee to review a record of discipline that would suspend him for five days for acting in an insubordinate manner at the muster.  The Charging Party refused to answer some questions during the interview and refused to sign the notice of suspension.  It was noted that an employee’s refusal to sign a disciplinary document was not unusual.

After the interview was concluded the employer decided to terminate the employee for insubordination during the interview, including his refusal to answer questions.

The General Counsel alleged that the employer’s refusal to allow an employee witness during the interview violated the Act as a denial of Weingarten rights.

The Administrative Law Judge dismissed the complaint, a decision which was upheld by the NLRB.  The ALJ concluded the Charging Party’s Weingarten rights had not been violated because:

[Charging Party’s] request for an employee witness at his self-represented interview is not a right specifically guaranteed in Weingarten as it is currently applied.  The right to a Weingarten representative is a right to a representative who is an agent of the labor organization which serves as the exclusive representative of the employees.  Weingarten, supra, 420 U.S. at 257-258

The ALJ also rejected the General Counsel’s assertion that an employee witness was mandated under Weingarten because a conflict of interest existed between the Charging Party and local union leadership because they had run against each other for union positions.  The ALJ concluded that while the union’s representation of Charging Party in this matter “might have been awkward, it is insufficient to warrant a finding of hostility, conflict of interest, or adverse interest.”

In upholding the dismissal, the Board emphasized that it was relying on the fact the Charging Party had indicated that he would represent himself and that “under these particular facts that [Charging Party] did not effectively request a Weingarten representative.”

Why would the NLRB be so careful in its ruling upholding the ALJ’s decision?  The short answer may be that the General Counsel and NLRB are looking for a case to extend Weingarten rights to the non-union context, which would of course mean that an employee witness would be permissible given that no representative exists in that context.  Indeed, the General Counsel has said as much in his GC Memorandum 14-01, Mandatory Submissions to Advice (February 24, 2014) which requires the Regions to send to the Division of Advice, cases “involving the applicability of Weingarten principles in nonunionized settings. . .”

Over the years, the Board has gone back and forth on whether to apply Weingarten rights in the non-union setting.  Currently, Board law holds that such rights do not apply in the non-union context.  So, it appears it may be only a matter of time before the law in this area changes…..again.

Regional Director Issues First Post-Pacific Lutheran Decision

Posted in NLRB

It did not take long for the fallout from the NLRB’s Pacific Lutheran University decision to begin. That decision, issued on December 16, 2014, announced new standards for (1) exercise of NLRB jurisdiction over religiously-affiliated colleges and universities; and (2) determining the managerial status of faculty members under the Supreme Court’s 1980 decision in Yeshiva University.  See our client alert on Pacific Lutheran here. In the first decision among a number of cases remanded by the Board for consideration in light of Pacific Lutheran, the NLRB Regional Director in Seattle ruled on March 3 that the Board had jurisdiction over Seattle University and that full-time contingent faculty members were not managerial employees.  He ordered that the ballots in the case, which had been impounded pending the Board review, be opened and counted.

The Regional Director found, based on the record already made in the case, that the university held itself out to the public as a Jesuit Roman Catholic institution providing a religious educational environment, thus satisfying the first part of the new Pacific Lutheran test. As in Pacific Lutheran, however, the Regional Director held that the university did not hold out the petitioned-for faculty members as performing a religious function. A general statement in the faculty handbook that “each member of the faculty is expected to show respect for the religious dimension of human life” was found insufficient, where there was not evidence that faculty members were required to serve as religious advisors to students, propagate the tenets of the Society of Jesus, engage in religious training, or conform to the tenets of Catholicism in their job duties.

In determining that the full time contingent faculty members were not managerial employees, the Regional Director found that they lacked authority to actually control or effectively recommend decisions affecting university policy in the three primary or two secondary areas of authority identified by the Board in Pacific Lutheran. He found that that the Academic Assembly exercised authority in the primary area of academic programs, but had no say in enrollment management and only a minimal authority over finances—the other two primary areas. Most importantly, tenured faculty made up a majority of the Assembly, and no contingent faculty served on the Program Review Committee, which reviewed all proposals for curricular change, and there was no evidence that they had a significant role on other committees.

The result in Seattle University is not surprising, given the stringent test announced in Pacific Lutheran for excluding religiously-affiliated schools from Board jurisdiction, and the limited role that contingent faculty have in governance of most colleges and universities. Further guidance can be expected as Regional Directors decide a number of other cases remanded by the Board for consideration under the Pacific Lutheran standards, including at least one case involving the managerial status of tenured faculty.

Search Of Company Vehicle Not Employee Interview Triggering Weingarten Rights, NLRB Division of Advice

Posted in Advice, Investigations, Investigations, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law.  Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an infinite variety of scenarios.  These questions include:  how long does one have to wait for the representative?  Can the employee request a particular representative?  Exactly how can the representative participate in the interview?  Are employer actions as opposed to interviews part of the Weingarten analysis?

The NLRB recently released  Southwestern Bell Telephone Company, 14-CA-141000, Advice Memorandum dated February 6, 2015, a memorandum issued by the Division of Advice, which addressed the last question.  The issue addressed in the Advice Memorandum was whether an employer’s search of a company car during a pending investigation was something that triggered Weingarten rights.  In that case, the employer found a small bag of marijuana underneath empty chairs where an employee had been sitting.  The employer called the employee in to ask about the marijuana and the employee requested a union representative; the request was granted.   The initial interview concluded and the employee went to lunch with her union representatives.

While the employee was at lunch the employer searched the company vehicle used by the employee.  Inside the vehicle, the employer found a CD case that contained music CDs and pornographic DVDs but no evidence related to the marijuana was discovered.  When the employee returned from lunch she was called into a second interview by the employer, which was again attended by the union representatives.   The employer asked the employee about the CD case and she acknowledged that it was hers but denied knowledge of the pornographic DVDs.

The employer suspended the employee but ultimately returned her to work with no loss of pay.  The employer then issued the employee a written reminder about the possession of the pornographic DVDs.  The union challenged the discipline in a grievance but did not assert the search violated the employee’s Weingarten rights.  The employee then filed a charge alleging that the employer violated her Weingarten rights asserting  the search of the company vehicle constituted a “continuation” of the investigatory interview that started with the inquiry about the marijuana and did not conclude until the second interview after lunch.

The Division of Advice directed that the charge be dismissed.  In its analysis of the case, Advice recited the basics of the law, noting that an “employer’s questions qualify as an investigatory interview even when they are merely implicit.”  Thus, Advice noted that the NLRB has found Weingarten rights apply when an employer requests an employee to submit to a sobriety test.  See System 99, 289 NLRB 723, 723, n. 2 (1988).  Advice noted further that there was “no question” the employer’s interactions with the employee “before and after the vehicle search were investigatory interviews under Weingarten.”

As to the search of the vehicle itself, though, Advice concluded that it was neither an investigatory interview or a “continuation” of the investigatory interview.  Advice noted the reasons for this conclusion:

When the Employer searched the company vehicle, it did not engage in a confrontation with the Employee and did not ask the Employee any questions, even implicitly. Instead, the Employee was not present for the search, and was not asked to aid the search, and was not even aware the search was taking place.  Because the Employer asked nothing of the Employee, the Employee had no need for a Union representative’s assistance.

This is a logical conclusion; after all, it was the company’s vehicle that was searched and the union did not assert the search was improper.  Still, the case is instructive and Advice memoranda are always full of good case citation and thoughtful analysis.   The case does highlight a fact about today’s labor relations climate:  given the receptivity of the NLRB to extension of rights, the fact this charge was filed is not a surprise.

NLRB General Counsel Issues Guidance on Deferral to Grievance Arbitration and Settlements

Posted in Arbitration, Deferral

Following the decision of the National Labor Relations Board in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (December 14, 2014), the NLRB General Counsel has issued Memorandum GC 15-02 (February 10, 2015), which provides guidance to the NLRB regional offices and to the general public regarding the application of that decision in pending and future cases.  The memorandum is lengthy and in some respects complex, but here are the key points.

The New Test:  In Babcock & Wilcox, the Board created a new test for deferring to awards rendered by labor arbitrators in cases also involving alleged violations of Sections 8(a)(1) and (3) of the National Labor Relations Act.  The new test states that deferral will be appropriate “where the arbitration procedures appear to have been fair and regular, the parties agreed to be bound, and the party urging deferral demonstrates that: (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law ‘reasonably permits’ the arbitral award.”  (GC Mem. at p. 2.)

Arbitrator’s Authority:  Explicit agreement on authority for the arbitrator to reach the statutory issues is a threshold requirement.  It must be given explicitly by the parties either in their collective bargaining agreement or in an ad hoc agreement with respect to any particular arbitration.  If the region has any questions about whether either such agreement exists, the question should be presented to the General Counsel’s Division of Advice for resolution.

Issue Actually Presented and Decided:  The test also requires the arbitrator to have been actually presented with, and to have actually decided, the statutory issue.  The General Counsel stated that this does “not require that an arbitrator conduct a ‘detailed exegesis’ of Board law . . . . “ because many arbitrators (and employer and union representatives) are not necessarily formally trained in labor law. (Id. at p. 4.) But neither will the Board “assume that an arbitrator implicitly ruled on the statutory issue if the award merely upholds disciplinary action under a ‘just cause’ analysis . . . .” (Id.)  What the Board requires is evidence that the parties clearly litigated the statutory issue before the arbitrator, and that the arbitrator clearly considered the issue in deciding the grievance.  (See id. at p. 5, citing and quoting Inland Steel, 263 NLRB 1091, 1096-97 (1982).)  The regions were instructed to present to the Division of Advice any questions concerning whether the statutory issue was presented to and considered by the arbitrator, as well as any cases where a party argues that it was prevented from doing so, including those cases where a union waited to file an unfair labor practice charge until after the underlying facts were arbitrated as part of a grievance, thus preventing the arbitrator from being presented with and deciding the statutory issue.

Reasonably Permitted Standard:  The General Counsel also addressed the key question of how an arbitrator’s award will be deemed to be “reasonably permitted” under the Act.  The General Counsel noted that in the past the test was whether the award was “clearly repugnant” to, or “palpably wrong” under, the Act.  Under this test the Board would generally defer unless there “no conceivable reading of the facts . . .  that would support the arbitrator’s decision.” (GC Mem. at p. 7, quoting Babcock & Wilcox, slip op. at 8.)  Now, under the new standard, the award must represent “a reasonable application of the statutory principles that would govern the Board’s decision.” (Id.)  The General Counsel’s gloss on this important and difficult to define issue is that the arbitrator need not rule exactly as the Board would have, nor will the Board engage in equivalent of de novo review of arbitrator’s awards.  Rather, the award need only reach a result that a decision maker reasonably applying the Act could reach, making allowances for the granting of some degree of deference to the arbitrator’s factual findings and credibility resolutions.  Further, the arbitrator’s remedy need not exactly match the remedy that the Board would have imposed, but some effective remedy must have been granted.  (GC Mem. at pp 7-8.)  Clearly this is one of the more difficult questions arising in deferral cases, and we expect that there will be additional jurisprudence in this area, as questions involving whether an award is “reasonably permitted” are to be presented to the Division of Advice.

Pending and Future Cases:  The GC Memorandum addressed the somewhat surprisingly complicated issue of the application of Babcock & Wilcox to pending and future cases. As a rule of thumb, the prior deferral standards apply if the arbitration hearing occurred before December 15, 2014, the date of the Babcock & Wilcox decision.  If the collective bargaining agreement under which the grievance arose was executed after December 15, 2014, then the new Babcock & Wilcox standards apply.  The complications arise with respect to grievances arising under collective bargaining agreements executed on or before December 15, 2014, but the arbitration hearing occurred after that date.  In such cases, which standard applies will depend on whether there was explicit authorization of the arbitrator to decide the statutory question.  If so, then the new Babcock & Wilcox standards apply – if not, the old standards apply. Special situations include collective bargaining agreements that automatically renewed after December 15, 2014, or that had expired by that date but there were still grievances pending under the expired contract after that date.  These are too complex to address in this blog, but the entire discussion can be reviewed at pp, 8-10 of the GC Memorandum.

Pre-Arbitration Deferral:  The GC Memorandum instructs the regions to no longer place cases in pre-arbitration deferral (i.e., await the outcome of the arbitration decisions) unless the threshold requirement of agreement to present the statutory issues to the arbitrator had been met. A detailed discussion of the issues, including its application to pending cases, is contained at pp. 10-12 of the GC Memorandum.

Grievance Settlements:  Finally, the General Counsel also addresses the question of grievance settlements which purport to dispose of the related unfair labor practice.  In those cases, the Babcock & Wilcox deferral standard will apply generally in the same manner as it does to arbitration awards, with the key questions being whether “(1) the parties intended to settle the unfair labor practice issue; (2) they addressed that issue in the settlement agreement; and (3) Board law reasonably permits the settlement agreement.”  (GC Mem. at 13.)

An Observation re the General Counsel’s Prosecutorial Discretion:  All of these instructions by the General Counsel are based on the Board’s decision, but they involve a power unique to the General Counsel – his unreviewable prosecutoral discretion under Section 3(d) of the Act.  Oddly, for decades the Board’s decisions in this area have impinged on the General Counsel’s authority.  One wonders what would happen if a future General Counsel, unhappy with these deferral rules, simply decided that her unreviewable prosecutorial discretion allowed her to ignore them?  As a practical matter, this may quietly happen, especially where the resolution of a major labor dispute depends on deferral to an arbitration award or, more likely, a settlement reached by the parties involving the requested dismissal of Sections 8(a)(1) and (3) unfair labor practice charges.

Higher Education Alert: NLRB Trend in Easing Unionization Continues with Recent Decision

Posted in Bargaining units, NLRA, NLRB, Representation Elections

The National Labor Relations Board issued a 3-2 decision last month in Pacific Lutheran University, 361 NLRB No. 157, in which it significantly modified the standards for determining:  (1) whether college or university faculty members are managerial employees and thus not protected by the National Labor Relations Act; and (2) when the Board should decline to exercise jurisdiction over a college or university that claims to be a religious institution.  (Proskauer had submitted an amicus brief in the case in support of various organizations representing colleges and universities on the first issue.)  (For a fuller discussion of the Board’s decision, please see Proskauer’s Client Alert.)

On each issue, the majority’s decision seemingly eases the path for unions seeking to represent faculty members at institutions of higher education:

  • First, the majority put a new gloss on the Supreme Court’s seminal decision concerning NLRA coverage of faculty members, NLRB v. Yeshiva University.  (Proskauer represented Yeshiva University in that case, which the high court decided in 1980.)  The Board will now find that faculty members are managerial employees only where their recommendations are “almost always” followed by administrators.  In addition, the majority’s new test identified three “primary” areas of decision making that it will accord the greatest weight, but in doing so combined in one such primary area (“academic programs”) several academic decisions that the Board has traditionally given greater weight in dozens of decisions over several decades, and elevated two other areas of decision making (enrollment management and finances) that have never held such significance.  And critically, the majority essentially avoided the D.C. Circuit’s mandate in LeMoyne-Owen College v. NLRB and Point Park University v. NLRB to explain “which facts are significant and which less so, and why.”  As dissenting Member Johnson wrote:

[T]he majority has decided to create a comprehensive test here, and, therefore, the actual weighting of its factors, including what showing is sufficient to meet the majority’s test, is a rather large analytical question to be left unresolved, particularly if the hope is to provide predictability and guidance with regard to how the Board will make these determinations in the future.

  • Second, the majority abandoned the “substantial religious character” requirement that it had previously applied in determining whether to assert jurisdiction over religiously-affiliated colleges and universities, but declined to adopt the D.C. Circuit’s three-part test in University of Great Falls v. NLRB that sought to avoid the risk of infringement upon First Amendment rights as addressed in the Supreme Court’s decision in NLRB v. Catholic Bishop of Chicago.  Instead, the Board will now require a college or university to show “that it holds out the petitioned-for faculty member’s [sic] as performing a specific role in creating or maintaining the school’s religious educational environment,” a requirement that the dissenting Board members argued does no better in mitigating the constitutional risk created by the Board’s assertion of jurisdiction.

The Pacific Lutheran decision closely followed the Board’s announcement of new rules that will speed up representation elections and, combined with the Board’s decision in Specialty Healthcare, which liberalized the standard for finding a petitioned-for bargaining unit to be appropriate, epitomizes a trend favoring unions in representation proceedings.  But given the strongly worded dissenting opinions and the majority’s failure to adequately address the D.C. Circuit’s concerns on either issue, we expect that Pacific Lutheran will not be the final word for the higher education community.

NLRB Issues Final Election Rules Revision

Posted in NLRA, NLRB, Representation Elections

As anticipated, the National Labor Relations Board today made public its final revised election rules.  The new rules will become effective 120 days following their publication in the Federal Register.  The publication date is scheduled to be Monday, December 15, 2014, one day before the expiration of the term of Member Schiffer.

There are really no major surprises in how the final rules came out.   Among the key provisions are:

  • All documents attendant to an election may now be filed electronically.
  • The election voter list (“Excelsior List”) must now include – in addition to names and home addresses of the employees – their personal phone numbers and personal email addresses (if available to the employer), and their work locations, shifts and job      classifications.
  • Hearings to be scheduled 8 days following the filing of the election petition, with discretion in the regional director to exceed that time frame in “complex” cases, or if the requesting  party can show “special circumstances” (for two additional days) or “extraordinary      circumstances” (for more than two days).
  • The non-petitioning party (generally the employer) must file a statement of position by noon on the seventh day after the filing of a petition, with allowances for changes if the hearing is not scheduled for the 8th day following the petition.
  • Eliminates post-hearing review as a matter of right.
  • Elimination of the 25 day “waiting period” before scheduling an election following the issuance of the decision (which had customarily been observed by regional directors following the hearing in contemplation of pre-election discretionary review).

The final rules submitted to the Federal Register are over 700 pages in length – which includes an explanatory preamble, views of the two dissenting Board members, and the majority’s response to the dissent.  The Board’s web site, nlrb.gov, also includes other explanatory material, including links the Board’s press release and a redline version comparing the new rules to the existing rules.  Those can be viewed here.

It is anticipated that there will be litigation in an attempt to block the rules.  It is also possible that Congress could attempt to vacate the rules under the Congressional Review Act or with other legislation, but such action would be subject to a presidential veto and a potential override.  Also, although apparently not possible in 2015 if the so called “cromnibus” budget bill is passed, later fiscal year appropriations could forbid funding for certain actions or enforcement under the new rules.   All of this will, of course, take time to play out.



NLRB Reverses Course, Gives Employees Certain Rights to Use Employer’s Email

Posted in Email, Employer policies, NLRA, NLRB, Protected activity, Social Media, Social Media Policies, Solicitation

In a decision that reverses existing case law on employee use of  employer email, the National Labor Relations Board (with two members filing separate dissents) has decided that under certain circumstances employees do have the right to use and employer’s email to engage in protected communications under the National Labor Relations Act. Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).

The key points in the majority opinion are:

  • The decision applies only to the employer’s employees, not non-employees.
  • The decision applies only to the use of the employer’s email, and not other forms of electronic communication maintained by the employer.
  • Importantly, the decision applies only in situations where the employees are already authorized to use the employer’s email for business purposes (or, it would seem to follow, for non-business purposes).
  • The use is subject to “reasonable” restrictions (e.g., non-work time, no oversized attachments, etc) necessary to maintain “production and discipline”.
  • Employers may monitor employee use as long as it is not discriminatory or tailored to impede protected use.

The Board will apply the new rules announced in Purple Communications case to all other pending cases presenting the issue, subject to a remand to determine if any of the employers involved can establish that any restrictions they have applied are lawful.

This decision is not a surprise.  It was well publicized that the Board was considering the issue anew, and the Board requested amicus briefs – a sure sign that the case is deemed important by the Board and a fairly reliable (though by no means certain) signal that the Board is going to change the law.

Bigger questions loom about the importance of the decision.  As the dissents pointed out, the decision introduces uncertainty  for employers, who now must figure out what type and how many “restrictions” are needed and whether they can be justified to the Board; and who must now navigate the shoals of monitoring employee email and the risks of unlawful surveillance that can pose.

Query how important the decision is to unions and employees.  Certainly a decade ago it would have been more important, but as the dissents also note, the technological revolution of the past few years has provided myriad means of electronic communication available to employees and unions, which do not depend at all on the use of or access to employer email.

All of which raises the question whether, on balance, the uncertainty for employers introduced by the decision, is worth the marginal additional communication rights it gives to employees?


No Duty To Bargain Over Discipline During Contract Hiatus, NLRB Division of Advice

Posted in Advice, Collective Bargaining, Due Process, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized

The NLRB has been active but quiet during the last few months as the agency quietly reaffirms decisions nullified by the Supreme Court.  By all accounts, however, and as history has proved, the NLRB is getting ready to issue an onslaught of law-changing decisions as we head into the holiday season.  This onslaught of change likely will be hastened by the departure of Board Member Schiffer, whose term is set to expire December 16.  So, keep an eye out as of December 18 when the decisions are likely to be posted on the NLRB’s website.  Let’s not forget, too, the Board likely will vote on the ambush election rules in the coming days.

In the meantime, the NLRB Division of Advice has answered a question that has been the subject of many charges since the Board’s decision in Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012), where it held that in cases where a union has recently secured representational rights, the employer has a duty to bargain over discretionary aspects of discipline before imposition until an initial contract is reached.  The Board’s decision in Alan Ritchey was invalidated by the Supreme Court earlier this year, yet the agency still applies its rationale as if nothing happened to the underlying case.

If an employer in negotiations over an initial contract had an obligation to bargain over discretionary aspects of discipline, then would this same rationale apply to discipline issued during a contract hiatus?  The Division of Advice, in a memorandum released on November 18, 2014 has answered this question in the negative.

In Washington River Protection Solutions, Case 19-CA-125339, Advice Memorandum dated October 14, 2014, the employer, a Department of Energy contractor at a nuclear power plant, had adopted a collective bargaining agreement from its predecessor.  That contract expired while the parties were in negotiations for a successor agreement.  The employer had in place a written discipline policy that “generally requires progressive discipline” in that it “allows the Employer to skip steps in the progressive-discpline” if it deems the employee’s actions to constitute “extremely serious misconduct.”  Among the items listed in this category was “[d]eliberate disregard of safety rules or safety procedures.”

The case involved an employee electrician who discovered a pile of unknown white powder on the floor of the nuclear power plant.  Safety protocol required this powder to be tested.  While an employee of the Employer’s Industrial Hygiene Department leaned over to take a sample of the powder, the electrician repeatedly questioned her about her credentials, and, while she was testing the powder, the electrician kicked the powder into the air allegedly stating, “there, breathe it in.”  The employer deemed this action (which was denied by the electrician) to be extremely serious misconduct and the electrician was discharged.

The union filed a grievance and the parties discussed the matter at various stages of the procedure.  However, because the parties were between contracts when the discharge occurred, the employer was not legally required to arbitrate the grievance.  After denials of the grievance, the union filed a charge alleging that due to the fact the level of discipline was discretionary, under Alan Ritchey, the employer had an obligation to bargain over it prior to imposition.

The Division of Advice in a footnote first had to overcome the most obvious obstacle, that Alan Ritchey no longer is the law.  The Division of Advice relegated this to a footnote, stating that that although Alan Ritchey had been issued by an improperly constituted panel, “[i]t is the General Counsel’s position that Alan Ritchey was soundly reasoned and that the Board should adopt the Alan Ritchey rationale as its own.”

In turning to the question of whether Alan Ritchey could apply to discretionary situations during a contract hiatus, Advice noted the rationale has “two primary policy rationales”:

First, the Board explained, requiring bargaining prior to imposing discipline precludes the ‘harm caused to the union’s effectiveness’ that would likely result if the bargaining occurred after discipline was imposed, and therefore prevents the employer from undermining a newly-certified union.  Second, requiring bargaining prior to imposing discipline permits the union to present additional evidence and arguments, including extenuating circumstances, for why the employer should give the employee a lesser form of punishment, and therefore will often lead to a ‘more accurate understanding of the facts, a more evenhanded and uniform application of rules and conduct, and…a better and fairer result….’

(footnotes omitted). In concluding that this same rationale did not apply to discretionary disciplinary actions taken during a contract hiatus, Advice had this to say:

However, once the parties have negotiated and agreed upon a discipline policy pursuant to a collective-bargaining agreement–even one that allows for broad employer discretion–the employer’s imposition of discipline under that policy does not represent the same threat to the bargaining relationship and should not be analyzed under the Alan Ritchey framework.  This is because when an employer issues discipline in accordance with a collectively-bargained policy, the union has already had the opportunity to weigh in on the matter, and therefore the exercise of discretion within the confines of a negotiated term or of the parties’ past practice is not a unilateral change.

(emphasis supplied).

Advice stressed that a different result might have occurred if there was evidence that the practice concerning disciplines had been changed by the employer.  It also noted the union had opportunity to provide input during the grievance procedure even if it could not submit the matter to arbitration.

So, for now, this interpretation will mean the Board will normally apply Alan Ritchey only to cases where the union and employer are in the initial stages of representation.  Advice left open the possibility that an employer could violate is obligation to bargain by changing the manner in which it metes out discipline during a hiatus period, which seems an open question if one is dealing with discretionary decisions.  Employers in a contract hiatus situation should ensure that everything is done to apply discipline just as it had during the term of the contract to avoid such allegations.